Lead Opinion
delivered the opinion of the court.
Thе plaintiff in the court below is a citizen of Minnesota, and "by occupation an engineer on a railway train. The defendant in the court below, the plaintiff in error here, is a railway corporation created under the laws of Wisconsin. This action is brought to recover damages for injuries which the plaintiff sustained whiist engineer of a. freight train by a collision with a gravel train on the 6th of November, 1880. Both trains belonged to the company, and forr some years he had been employed' as such engineer on its roads. On that day he was in charge of the engine of a regular freight train which left Minneapolis at a quarter past one in the morning, its regular schedule time, and had the right of the road over gravel trains, except when otherwise ordered. At thе time of the collision, one McClintock was the conductor of the train, and had the entire charge of running it. It was his duty under the regula: tions of the company to show to the engineer all orders which he received with respect to the movements of the train. The regulations in this respect were as follows: “ Conductors must in all cases, when running by telegraph and special orders, show the same to the engineer of their train before leaving stations where the orders are received. The engineer must read and understand the order before leaving the station. The conductor will have charge and control of the train, and of all persons employed on it, and is responsible for its movements while on the road, except when his directions сonflict with these regulations, or involve any risk or hazard, in which case the engineer will also be held responsible.”
When the freight train left Minneapolis on the morning of November 6, 1880, there was coming toward that city from Fort SnelK ig, by order of the company, over the same road, a gravel train, termed in the complaint -a wild- train, that is, a
On the trial the conductor of the gravel train testified that at the time of the collision he was under orders to run to South Minneapolis regardless of the plaintiff’s train; that having twelve cars loadеd with gravel, his. train stalled before reach? ing the cut where the collision happened; that he then separated his train in the middle, took six cars to Minnehaha Station, went back with the engine for the other six cars, and was coming with them through thé cut when the collision occurred; that the gravel train had run in the night about a week, and’ that when he could reach Minneapolis before the starting time
.It is evident from this brief statement that the conductor on each train was guilty of gross negligence. The conductor of the freight train was not only 'required by the general duty devolving on him, as one controlling its movements, to give to its engineer such orders as would enable him to avoid collision with other cars, but as we have seen, he was expressly directed by the regulations of the company, when- -running by telegraph or special orders, to communicate them to him. Had these regulations been complied with, the collision would have been-avoided. The conductor of the gravel train allowed it to be so overloaded'that its engine was incapable of moving it at, one portion of the road before reaching the cut; and when, in consequence, he was obliged to-leave half of his cars on the track while he took the others to Minnehaha, he omitted to sénd forward information of the delay or to-put out signals of danger. Having for the week previous, passed the freight train at nearly the same place on the-road, he must have known that by the delay there was danger of collision. Ordinary prudence, therefore, would have dictated the sending forward of information of his position or the putting, out, of danger signals. Had he done either of these things the collision would not have occurred.
The collision -having been caused by the gross negligence- of the conductors, the question arises whether the company is responsible to the plaintiff for the injuries which that collision inflicted upon him. ■
The general liability of a railroad company for injuries, caused by the negligence of its servants, to passengers and others not in its service is conceded. It covers all injuries to which they do not contribute. But where injuries befall a servant in its employ, a different principle applies. Having been engaged for the performance of specified services, he takes upon himself- the ordinary risks incident thereto. As á consequence, if he suffers by exposure to them, he cannot recover compensation from his employer. The obvious reason for this
But however this may be, it is indispensable to the employer’s exemption from liability to his servant for the consequences of risks thus incurred, that he should himself be free from negligence. He must furnish the servant the means and' appliances which the service requires for its efficient and safe performance, unless otherwise stipulated; and if he fail in that respect, and an injury result,' he is as liable to the servant as he would be to a strabger. In other words, whilst claiming such exemption he must not .himself be guilty of contributory negligence.
When the service to be rendered requires for its performance the employment of several persons, as in the movement of railway trains, there is necessarily incident to the service of each the risk that the others may fail in the vigilance and caution essential to his safety. And it has been held in numerous cases, both .in this country and in England, that there is implied in his contract of service in such cases, that he takes upon himself risks arising from the negligence of his fellow-servants, while in the same employment, provided always the
. In the Massachusetts case, an engineer employed by a railroad company to run a train on its road was injured by the' negligence of a switch-tender also-in its employ, and it was held that the company was not liable. The court placed-the exemption of the company, not on the ground of the South Carolina decision, that there was a joint undertaking by the fellow-servants, but on the ground that the contract of the engineer implied that he would take upon himself the risks attending its performance, that those included the injuries which might befall him from the negligence of fellow-servants in the same employment, and that the switch-tender stood in that relation to him. • And the court added, that the exemption of the master was supported by considerations of policy: “ Where several persons,” it said, “ are employed in the conduct of one common enterprise or undertaking, and the safety of each depends on
The opinion in this case, which was delivered by Chief Jus
The doctrine of the master’s exemption from liability was first, distinctly announced in England in 1850 by the Court of Exchequer in Hutchinson v. York, Newcastle & Berwick Railway Co., 5 Exch. R. 343. Priestley v. Foster, 3 M & W. 1, which was decided in 1837, and is often cited as the first case declaring the doctrinе, did not directly involve the question' as to the liability of a master to a servant for the negligence of a fellow-servant. In that case a van of the defendant in which the plaintiff was carried was out of repair and overloaded and consequently broke down, and caused the injury complained of; but it did not appear what produced the defect in the van or by whom it was overloaded. The court in giving its decision against the plaintiff observed that if the master was liable, the principle of that liability would “ carry us to an alarming extent; ” and in illustration of this statement said that if the owner of a carriage was responsible for its sufficiency to the servant, he was, under the principle, responsible for the negligence of his coach-maker or harness-maker or coachman, and mentioned other instances of such possible responsibility to a servant for the negligence of his fellows, concluding that the inconvenience of such consequences afforded* a sufficient argument against the application of the principle to that case. The case, therefore, can only be considered • as indirectly asserting the doctrine. At’'any rate, the Hutchinson case is the first one where the doctrine was applied to railway service. There it appeared that a servant of the company who, in the discharge of his duty, was riding on one of its trains, was injured by a collision with another train of the same company, from which his death ensued; and it was held that his representatives could not recover, as he was a fellow-servant with those who caused the injury; and the court said that whether the death resulted from the mismanagement of the one train or the other, Or of both, did not affect the principle. The rule was applied at the same time by that court to exempt a master builder from liar
The doctrine assumes that the servant causing the injury is in the same employment with the servant injured, that is, that both are engaged in a common employment. The question in all cases therefore is, what is essential to render thе service in which different persons are engaged a common employment ? And this question has caused much conflict of opinion between different courts, and often much vacillation of opinion in the same court.
In Bartonshill Coal Co. v. Reid, and the Same Company v. McGuire, reported in 3d Macqueen H. L. Cases, 266, decided in 1858, the parties injured were miners employed to work in a coal pit, and the party, whose negligence caused the injury, was employed to attend to the engine by which they were let down into the mine and brought out, and the coal was raised which they had dug; and it was held that they were engaged in a common,work, that of getting.coal from the pit. “The miners,” said the court in the latter case, “ could not perform their part unless they were lowered to their work, nor could thе end of their common labor be attained unless the coal which they got was raised to the pit’s mouth, and of course at the close of their day’s labor the workmen must be lifted out of the mine. Every person who engaged in such an employment must have been perfectly aware that, all this was incident to it, and that the service was necessarily accompanied with the danger that the person entrusted with the machinery mighl; be' occasionally-negligent and fail in his duty.” Lord Chan-, cellor Chelmsford, who gave the principal opinion in the latter case, referred to previous cases in which the master’s exemption from liability had been sustained, and said: “ In-the consideration of these cases it did not become necessary to define with any grеat precision what was meant by the words £ common service’ or ‘common employment,’ and perhaps it might be difficult beforehand to suggest any exact definition of them.
Later decisions in the English courts extend the master’s exemption from liability to cases Avhere the servant injured is working under the direction of a foreman or superintendent, the grade of service of the latter not being deemed to change the relation of the tAVO as fellow-servants. Thus, in Wilson v. Merry, L. R. 1 H. L. Sc. 326, decided by the House of Lords
But notwithstanding the number and Aveight of such decisions, there are, in this country, many adjudications of courts of great learning restricting the exemption to cases Avhere the felloA\r-servants are engaged in the same department, and act under the samé immediate direction ; and holding that, within the reason and principle of ;the doctrine, only such servants can be. considered as engaged in the same сommon employment. It is not, however, essential to the decision of the present controversy to lay
There is, in our judgment, a clear distinction to be made in their relation to their common principal, between servants of a corporation, exercising no supervision over others engaged -with them in the same employment, and agents of the corporation, clothed with the control and management of a distinct department, in which their duty is entirely that of direction and superintendence. A conductor, having the entire control and management of a railway train, occupies a very different position from the brakemen, the porters, and other subordinates employed. He is in fact, and should be treated as, the personal representative Of the corporation, for .Whose negligence it is responsible to subordinate servants. This view of his relation to the corporation seems to us a reasonable and just one, and it will insure more care in the selection of such agents, and thus give greater security to the servants engaged under him in an employment requiring the utmost vigilance on. their part, and prompt and unhesitating obedience to his orders. .The rule which applies to such agents of one railway corporation must apply to all, and many corporations operate every" day several trains over hundreds of miles at great' distances apart, each being under the control' and direction of a conductor specially appointed for its management. We know from the manner in which railways are operated that, subject to the general rules and orders of the directors of the companies, the conductor has entire control and management of the train to which he is assigned. He directs when it shall start, at what speed it shall run, at what stations it. shall stop, and for what length of time, and everything essential to its successful movements, and all persons employed on it are subject to his orders. In no proper sense of the terms is he a fellow-servant with the firemen, the brakemen, the porters and the engineer. The latter are fellow-servants in the running of the train under his direction ; as to them and the train, he stands in the place of and represents the corporation. As observed by Mr. Wharton in his valuable treatise on the Law. of Negligence: “It has sometimes been said that a corporation is
In Little Miami Railroad Co. v. Stevens, 20 Ohio, 415, the Supreme Court of Ohio held that where a railroad company placed, the engineer in its employ under the control of a conductor of its train, Avhо directed Avhen the cars Avere to start, and when to stop, it was liable for an injury received by him caused by the negligence of the conductor. There a collision between tAvo trains occurred in consequence of the omission of the conductor to inform the engineer of a change of places in the passing of trains ordered by the company. Exemption from liability Avas claimed on the ground that the engineer and conductor Avere fellow-servants, and that the engineer had in consequence taken, by his contract of sendee, the risk of the negligence of' the conductor; and, also, that public policy forbade a recovery in such cases. But the court rejected both positions. To the latter it very pertinently observed, that it Avas only Avhen the servant had himself been' careful that any right of action could accrue to him, and that'it Avas not likely that any would be careless of their. lives' and persons or property merely because they might have a right of action to recover for'injuries received. “If men are influenced,” said
There are decisions in the courts of other States, more or less in conformity with those cited from Ohio and Kentucky, rejecting of limiting, to a greater or less extent,.the master’s exemption from liability to a servant for the negligent conduct of his fellows. We agree with them in holding — and the present case requires no further decision — that the conductor of a railway train, who commands its movements, directs when it shall start, at what stations it shall stop, at what speed it shall run, and has the general management of it, and control over the persons employed upon it, represents the company, and therefore that, for injuries resulting from his negligent- acts, the company is responsible. If such a conductor does not represent
If, now, we apply thes'e views of the relation of the conductor of a railway train to the company, and to the subordinates under him on the train, the objections urged to the charge of the court will be readily disposed of. Its language in some sentences may be open to verbal criticism; but its purport touching the liability of ‘the company is, that the conductor and engineer, though both employes, were not fellow-servants in the sense in which that term is used in the decisions; that the former was the representative of the company, standing in its place and stead in- the running of the train, and that the latter was, in that particular, his subordinate, and that for the former’s negligence, by which the latter, was injured, the company was responsible.
' It was not disputed on the trial that the collision which caused the injury complained of was the result of the negligence of the conductor of the freight train, in failing to show to the engineer the order which he had received, to stop the train at South Minneapolis until the gravel train, coming on the same road from an opposite direction, had passed; and the court charged the'jury, that if they so found, and if the plaintiff did not contribute to his injury by his own negligence, the company was liable, holding that the relation of superior and inferior was created by the company, as between the two in the operation of its train; and that they were not, within the reason of the law, fellow-servants engaged in the same common employment.
As this charge was, in our judgment, correct, the plaintiff was entitled to recover upon the conceded'' negligence of the conductor. The charge on other points is immaterial; whether correct or erroneous, it could not have changed the result; the verdict of the jury could not have been otherwise than for the plaintiff. Without declaring, therefore, whether any error was committed in the charge on other points, it is sufficient to say that we-will not reverse the judgment below if an error was committed on the trial which could not have affected the verdict. Brobst v. Brook,
Judgment affirmed.
Dissenting Opinion
dissenting.
Justices Matthews, Gray, Blatchford and myself dissent from the judgment of the court. We think that the conductor of the railroad train in this case was a fellow-servant of the railroad company with the other employes on the train. We think that.to hold otherwise would be to break down the long established rule with regard to the exemption from responsibility of employers for injuries to their servants by the negligence of their fellow-servants.